One class of landowner would get special treatment under city’s stormwater fees

Unequal treatment

University of Colorado at Colorado Springs would fall under Provision F for drainage fees.

When outlining the proposed stormwater ballot measure to City Council on Aug. 17, Deputy City Attorney Tom Florczak admitted it has flaws. “Is it perfect? No,” he said. “No way you write this is going to be perfect for all people at all times.”

City Councilor Bill Murray wasn’t happy about that, saying the measure and underlying ordinance left too many issues “to be determined,” including the fees for large non-residential property. The Broadmoor resort and The Antlers hotel were his examples.

A closer look at the ordinance proves Murray is right. While two classes of people will pay flat fees regardless of impervious surface (the portion of property that can’t absorb rainwater, such as rooftops or parking lots), a third pool of property owners would be assessed by the city’s stormwater manager according to how much grassy area covers those properties, raising questions of equity, as well as whether treatment of the special class represents another give-away to the rich.

That leads anti-tax activist Douglas Bruce to this conclusion. “Any ‘fee’ (tax) that leaves its exact amount up to bureaucratic discretion of one person is open to abuse and bribery,” says Bruce, who says he’ll be involved in a grassroots opposition effort.

Coupled with that issue are questions about what, if any, appeal process will be allowed for those who feel their fees aren’t computed correctly, and whether the fees assigned to those in that special class will be a matter of public record.

The ballot measure that would authorize fees is the city’s latest attempt to win voter approval for a dedicated funding stream for drainage projects. Two recent attempts based fees on impervious surface. The first was Council-imposed in 2007 but got rolled back in 2009 after a successful voter initiative. In 2014, voters defeated a regional measure.

This time, the city poses a ballot question that would rely largely on flat rates. If approved, all households — even renters — would pay $5 a month, while owners of non-residential properties up to 5 acres would pay flat fees of $30 an acre per month, regardless of the amount of grass, gravel or asphalt on their parcels.

Mayor John Suthers says polling shows the idea of flat rates is popular. “What people want most of all is simplicity,” he tells the Indy.

But a special third group would have the advantage of having their properties assessed based on how much or how little their properties contribute to the city’s drainage system — i.e., impervious surface.

Defined in Provision F of the ballot measure’s underlying ordinance, this class includes owners of developed or improved non-residential tracts greater than 5 acres. The provision calls for the stormwater manager to “disregard” areas of substantial size that haven’t been improved or remain in a natural state or those that are improved only with grass or vegetation, such as golf courses. It’s worth noting the city itself will pay fees, meaning its parkland would fall into this third special class.

In other words, those in the special class would get the advantage of paying fees based on impervious surface, while homeowners would not be afforded the same consideration.
Suthers defends this mechanism, saying, “I think it’s very fair to encourage businesses to have large open space as part of their corporate campuses.”

Council President Richard Skorman, who supports the ballot measure, says the idea is to protect big land owners. “There are some areas that are undeveloped land that aren’t going to be huge contributors,” Skorman says, “some city pocket parks and golf courses, that type of thing.”
Skorman says he thinks there are only “three or four dozen” property owners in that class. But El Paso County Assessor’s Office records show there are 1,182 tracts that appear to fall within Provision F’s guidelines, a number that Suthers considers “manageable.” That number excludes agricultural or undeveloped property, which won’t be subject to fees, such as the 18,000-acre Banning Lewis Ranch on the city’s east side owned by Nor’wood Development Group, the region’s biggest developer. If the $30-per-acre fee was applied to BLR, the monthly fee would come to $540,000, obviously a preposterous figure.

Skorman says as the BLR gets developed over time, it will be subject to stormwater fees, but adds, “Right now, it’s in its natural state.” Thus, the property won’t be assessed stormwater fees.
While Councilor Andy Pico voted against referring the measure to voters due to his concern about charging all residents the same rate, he thinks it’s appropriate to ignore billing properties that don’t “add to the developed flow.”

Councilor Jill Gaebler, who voted to refer the measure to voters, says simply, “Nobody should get a pass.”

Here are a handful of properties that would fall under Provision F, with the amount of monthly stormwater fees they’d pay if assessed at $30 per acre like other non-residential property:

• The Broadmoor, which covers roughly 700 acres, including hundreds of acres of golf courses. ($21,000)
• University of Colorado at Colorado Springs, which sits on about 85 acres, much of which is paved. ($2,550)
• El Pomar Youth Sports Complex ball fields, at 2212 Executive Circle, where most of those 54 acres are grass. ($1,620)
• First and Main Town Center, at 3305 Cinema Point east of Powers Boulevard, where nearly all of the 11.3 acres are paved. ($339)
• New Life Church, located on 34 mostly paved acres at 11005 Voyager Parkway. ($1,020)

But many properties that potentially could be assessed in that manner won’t get a break from the $30-per-acre fee, says Water Resources Engineering Division Manager Rich Mulledy, who will perform the assessment. “We’re talking about areas that are largely native,” he says, which won’t include large grassy areas surrounding school buildings, say, or business parks. Ball fields, for example, are compacted soil topped by grass that “do produce a lot of runoff.”

So just because there’s a grassy area doesn’t mean it will automatically be exempt from the fee. Colorado College, for example, has a lot of grass. If all or much of that space is determined not to be native and not pervious under Provision F, the college might want to appeal. If so, what’s that process?

The ordinance lacks any guidance on appeals of the stormwater manager’s determination, and council members couldn’t fill in the gap.

“That’s a very good question,” Pico says, “and I don’t know.”

Gaebler, too, couldn’t say but adds that Council “should be giving more direction of how that should be handled.”

Skorman acknowledged that’s not the only unresolved issue. “That’s yet to be determined, as well as billing with Utilities,” he says. “That hasn’t been formally voted on by the Utilities Board. We want to see if it passes first. There’s a question of if it’s on a utility bill and people decide not to pay it, does that mean we’re going to shut off their utilities if they don’t pay their $5 fee?”

The enabling ordinance for the ballot measure also is silent on whether rates paid by anyone, including the special class, would be considered open records. Under state law, utility bills are considered confidential, and it’s unclear whether the city would place stormwater fees in the same category as utility bills. So it’s unknown whether citizens could find out the assessments imposed on members of the special class covered by Provision F.

That said, Skorman assures rate assessments would be disclosed, saying, “I would assume it’s going to be open to the public, and if not, the Council will make sure it is.”